The Overdue Case Against Sex-Segregated Bathrooms

Abstract

This Note helps untangle the perceived tension between transgender bathroom access and women’s rights by examining the historical, legal, and normative case against sex-segregated bathrooms. Part I addresses two important aspects of the history of sex-segregated bathrooms: first, their origins, and second, the historical lack of high-profile feminist opposition to them. After this historical examination, Part II demonstrates that legal sources similarly fail to provide adequate justification for sex-segregated bathrooms. It surveys judicial opinions touching the matter, including Title VII and transgender rights litigation, highlighting a rich and underutilized body of legal reasoning. Part III demonstrates that none of the interests marshalled in support of sex-segregated bathrooms stands up to intermediate scrutiny, primarily because the sex-specific nature of these interests undercuts their importance. Finally, Part IV develops the normative case against sex-segregated bathrooms. Drawing on the work of social scientists, feminist theorists, and other scholars, Part IV argues that sex-segregated bathrooms are in fact normatively undesirable, harming women far more than they benefit them.